Jurisprudence of Legislative Privilege: Unfolding the Parliamentary Role Models and Paradigms

Sumit Kumar is a Ph.D. candidate at National University of Study and Research in Law, Ranchi, Jharkhand.

The word “privilegium”, as indicated in the classical Roman law, means a law enacted for or against a single person. This meaning, however, is apparent from the etymology of the term. When the right to make a testament without the usual formalities was conferred upon the soldiers by Justinian, the word was used to embrace a special class of persons upon whom rights were invested. However, in the generic sense, it reflects the idea of a “privileged class”, in which a person or a group, beyond the common advantages of people, is granted with some special rights or immunities.[1] The word “privilege”, in its active sense, means a particular law through which certain special prerogatives are granted to some particular persons and it is contrary to common right.[2]

However, in the parliamentary context, the word “privilege” does not justify the same meaning. Conceptually it is misunderstood that the politicians acquire personal privileges simply by being elected to Parliament or the State Legislature. Parliamentary privilege, as a matter of fact, applies to the Parliament as an institution, and not specifically on the individual Members. As a democratically elected House of the people, it enables the representatives of the People to go about its business, such as law making, without interference from outside.[3] It refers to such rights and immunities that are deemed necessary for the House of Commons, as an institution, and its Members, as representatives of the electorate to perform their functions fearlessly and without any interference. As the lawmaker of a particular territory, the Parliamentary institutions has the power to protect itself, its Members, and the procedures adopted by it to effectively carry out its functions and such powers are referred as “parliamentary privileges”. In that sense, the parliamentary privilege can be viewed as special advantages which Parliament and its Members need to function unimpeded.[4] It is important to mention that the term “privilege” does not refer to any special benefits or entitlements enjoyed by Members of Parliament but to the immunity from ordinary law that, together with the potential exercise of parliamentary powers, enables the Houses of Parliament to carry out their primary functions of legislating, debating and inquiring more effectively and independently. It consists of the rights and immunities which the two Houses of Parliament and their Members possess, that enable them to carry out their parliamentary functions effectively. The model definition of parliamentary privilege is found in Erskine May’s Treatise on the Law, Privileges, Proceedings, and Usage of Parliament:

“Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively and by Members of each House individually, without which they could not discharge their functions, and which exceeds those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.”[5]

This definition clearly shows that the privilege has the tendency to insulate the person or the institution associated with the privilege, from the interference of other organs of the State, when properly invoked. The only legislature can regulate and deal with such matter which falls within the ambit of its privilege. Also, the “peculiar rights” as said in the above definition can be broadly divided into two categories, i.e. one extending to Members individually, while other collectively to the House. These, under the above two groups, are further clubbed under various headings. It is important to know whether any particular right comes under which category, i.e. whether it can be invoked individually by the Members or collectively by the House.[6] Many authors believed that the privileges possessed by the House collectively are generally “powers”; whereas those enjoyed by individual Members are generally “immunities”.[7]

Privileges enjoyed by the Parliament and its Members as generally guaranteed by the Constitution of the country. However, there are few exceptions to this, such as Sri Lanka, where it is contained in another legal instrument. In Sri Lanka, the privileges are guaranteed by the act of Parliament, while in New Zealand and Russian Federation by the statute of law.[8] The United Kingdoms and Canada do not have a codified system to guarantee the “Privileges”. It cannot be denied that the Privileges in the newly independent de-colonized countries which attained independence and thereby opted for a parliamentary system of governance followed the legacy of colonizer country by default.

Parliamentary Privilege: The Role Model

It is evident that privileges, as it exists today on the globe, shows a general trend in it. It can be said that the entire globe is following either of the few Parliamentary systems, as it existed when they opted for it.

Britain has one of the ancient laws of privilege on the globe. It reflects the political history of the country and is unique in itself. The legislative bodies of Britain enjoy some privileges since the 15th century. Certainly, with the coming of Bill of Rights in 1689, the privileges enjoyed by the Legislative Institutions and its Members became clear. The concept of “superiority of Parliament” not only graced the British Parliament certain immunities but also it was blessed with certain powers, judicially and semi judicially in nature. It was very rarely seen that a legislative body was vested with the powers of the court but the nexus can be derived from the fact that predecessor of House of Commons was the “High Court of Parliament” which had legislative functions to perform along with being High Court of Judicature.

As mentioned earlier, the Bill of Rights gave the privileges, which were in practice from time immemorial, a better shape. Article 9 of the Bill of Rights has given place to the privilege of “Freedom of Speech”. The privilege of freedom of speech, however, does not come into existence only after coming off the Bill of Rights, but the History of Britain is evident of the fact that a privilege of “freedom of speech” is enjoyed by the House of Commons from the 15th century.[9] The privilege came into existence when there arose a conflict between the Parliament and the Crown which disputed the right of the Crown to cause Members to be called to account for their statements in Parliament. The provisions of Article 9:

“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament confirmed Parliament’s claims, and had the formal and explicit agreement of the Crown.”[10]

The mandate is clear in protecting the Members against the defamation case for anything said in the Parliament. The later part of the provision seems to be a political settlement, which otherwise is necessary to safeguard the separation of powers.[11]

The other immunities of Members include “Freedom from Arrest” for the Member of the British Parliament. This immunity, as a privilege, was recognized in 1340.[12] As a part of the law of the land, this immunity cannot be waived, though it is limited to the civil matters. This immunity has been questioned several times and its reach has been clarified and qualified by legislation.[13] A Member of the British Parliament is exempted from the compulsory attendance as witnesses, in both civil and criminal proceedings.[14]

There exist few privileges, apart from the immunities of the Members, which can be enjoyed by the British Parliament as an institution. Although they are said to be privileges but in reality, they are the powers associated with Parliament as an institution. Deriving from the medieval concept, where the legislative functions were imposed on the Courts of Justice, the British Parliament has the power to punish for their contempt. Inheriting such powers from its predecessor i.e. the High Court of Parliament, the British Parliament is vested with the judicial/ pseudo judicial powers. The British Parliament can impose fine and imprison the offenders which include it Members and others. Although this power has been questioned in the Court of law several times, but it still remains annexed to the British Parliament for different reasons. The experts, both legal and political, see this power as essential to preserve the dignity of the Parliament as an institution. However, since there is no closed set of actions which could be subjected to punishment, a minimal scrutiny of a judicial body is required. The history of parliamentary setup around the globe has described this power as a “quintessentially British institution”.[15]

Many Parliaments around the globe have incorporated the features of the classic British model; especially it has been inherited by the Parliament of the majority of such Nations who were at times under the control of British i.e. British colonies or possessions.[16] However, the way of incorporation/inheritance of the British Model has been different. In some cases, provisions similar to that of law relating to Parliamentary privileges in Britain is incorporated under a written constitution while in some countries there are links for referring the privileges of the House of Commons under the Constitution or other laws. It is also evident that in some parliamentary setups, though there is no specific mentioning/links to British parliamentary laws, but the law relating to Parliamentary Privileges in Britain is still referred out of “reasonable necessity”.[17]

The French model, no doubt differs from the British Model, not only in terms of expression, but also in the ambit of Privilege. There are differences in respect of the immunity of Members’ person and significantly in respect of the ability of Parliament to punish for their contempt. However, it can be said that the legacy of the British Parliament can be seen in Article 26 of the French Constitution, 1958, which suggests:

“No Member of Parliament may be prosecuted, searched for, detained or be subject to judgment on the basis of opinions of opinions expressed or votes cast by him in the exercise of his duties.”[18]

The protection under this Article is absolute and it affects both the criminal prosecution as well as civil action against the Member. A judge had no power to take into account the content of a written or oral opinion coming from the Member of Parliament. However, Courts have been required to determine issues such as whether the repetition outside Parliament by Members, or by broadcast, of remarks made in Parliament are protected by force of this provision.[19] It is notable that the form of words “No Member may be prosecuted” is in contrast to the Bill of Rights with its reference to the activity “proceedings in Parliament”. This may mean that questions such as whether other persons (for example committee witnesses) are covered by the immunity were more prominent there. In the event, however, Court decisions have recognized the protection of witnesses.[20]

In France, the immunity of the Member’s person has been recognized since the formation of the National Assembly, on 23 June, 1789, when the Assembly declared “the person of each deputy shall be inviolable”.[21] The justification of such a provision is the protection of deputies from actions by the crown/executive.[22] The extent and application of the immunity have apparently developed considerably in the last several years, particularly with regard to the interests (and tolerance) of others.[23] The only element that remained constant is the fact that Parliament has a role in the application of the immunity. In essence, and other than in criminal cases, where a Member is captured red-handed or in respect of final sentencing, parliamentary approval is required for the arrest or detention of a Member.[24] The approval is given by the Bureau (Managing Group) of the House. One advantage of this is that confidentiality may be maintained, at least for a period.[25]

An indication of the political and parliamentary sensitivity of these matters is given in the statement of one Senator:

“To gnaw at inviolability is to hand over parliamentarians to the vengeance and arbitrary decisions of those who, with complete impunity, profit from the weakness of a state terrorised by excessive media coverage in order to set themselves up as a power independent of the law itself and to launch a concerted attack on the authorities and principles of the Republic. One can even bar parliamentarians from attending sittings on the grounds that they have to answer judges’ summons”.[26]

Despite their authority in matters such as the immunity of Members’ persons, the Houses of the French Parliament has never enjoyed the broad capacity to punish offenses (contempt) possessed by the House of Commons.[27]

Parliamentary Privilege: Origin and Development

The eminent authors around the globe have pointed that the origin of parliamentary privilege can be traced in the ancient practice, asserted by Parliament and accepted over time by the Crown and the courts as the law and custom of Parliament.[28] The historical journey of Parliament started from England, surprisingly not as a legislative body, but as the highest judiciary in the country. Parliament, as an institution, established its privileges in the course of time. The origin of Parliament, in England and in the World, can be traced after the Norman conquest of England in 1066 A.D.[29] The medieval institution of Curid Regis established a central assembly of Normans, exercising undifferentiated, executive, judicial and legislative authority, which prepared the way for the ultimate emergence of the institution of modern Parliament with its clearly differentiated and distinguishable making authority.[30] It is by no means an exaggeration to say that these judicial characteristics colored and influenced some of the great struggles over privilege in and out of Parliament to the very close of the nineteenth century. It is not altogether certain whether they have been entirely forgotten even now. Nowhere has the theory that Parliament is a court, the highest court of the realm, often acting in a judicial capacity and in a judicial manner-persisted longer than in the history of privilege of Parliament.

In England, by the 14th century, The British Parliament developed two distinct Houses, the Commons and the Lords. The Commons involved representatives from counties, towns, and cities, the Lords already consisted of Members of the nobility and clergy. The House of Lords continued to excise its power of judiciary but with the appearance of the Common House, Parliament slowly began to assert a greater role for itself in legislative areas, and gradually became conscious of itself as a sovereign legislative. The Parliament shifts the emphasis of its activity away from judicial and administrative matters to legislative matters, which were traditionally seen as affairs of the Crown.[31]

The Parliament, now thinking itself as an independent legislative body, asserted and solidified certain rights and privileges that they believed as necessary to work as an independent institution. The Speaker of the House delivered a “Speaker’s Petition” to the King at the beginning of every new legislative session. This “Speaker’s Petition” restated the rights and privileges of the Parliament that the King was to respect. But such restatement was also unable to prevent the detention or arrest of Members at the order of the Crown. The history of the Parliament in England witnessed the imprisonment of Members of Parliament without trial while the House was not sitting or after the dissolution of Parliament. One such incident happened in the reign of Richard II (1396-1397), when a Member of the House of Commons, Sir Thomas Haxey in January 1397 presented a petition to Parliament, criticising the costs of King Richard II of England’s household. Sir Thomas Haxey was condemned in Parliament as a traitor and he was deprived of his title and possessions. On deposing Richard II in 1399, King Henry IV of England petitioned the Parliament to reverse the judgment as being against the law and system which had existed before in Parliament.[32] The future of “right of free speech” in the Parliament relied on the grace of the King till almost 15th century. The British Parliament in 1512 finally passed an Act which declared all suits and proceedings against every Member of Parliament “for any bill, speaking, or declaring of any matter concerning the Parliament, to be communed and treated of, be utterly void and of none effect”. But, notwithstanding this recognition, the right of free speech continued to be considered, more or less, as an act of grace on the part of the King. For a long time, English courts could not agree whether the Act of 1512 was general or special.[33]

In 1558, the Queen of England was unhappy with Parliament’s open involvement in areas of government that had traditionally belonged to the Crown. The reason for the same was the discussion and displeasure of the Parliament with Queen Elizabeth’s views regarding succession. The Queen ordered the end of further discussion of the issue. The order from the Queen was seen as a violation of Parliament’s privilege of free speech by Mr. Wentworth, a Member of Parliament and he openly questioned the actions of the Queen despite her attempt to stop its further deliberation on the subject.[34] Few years later the attention of the Queen was again caught by the Parliament. The Queen again lashed out at Parliament for its intrusion into areas strictly dealt with by the Crown while the Parliament was deliberating on an issue involving religion. Once again, Mr. Wentworth began vocalizing his displeasure in what he saw as the Queen’s intrusion into Parliament’s freedom of speech.[35] The state officials this time attempted to interrogate Mr. Wentworth. A committee was appointed by the Parliament which questioned Mr. Wentworth regarding his disrespect towards the Queen and his inflammatory remarks.[36] Wentworth took the position that if the committee were conducting its hearing on behalf of the Crown, he would refuse to answer any of its questions since it had no authority to question him. On the other hand, if this committee were acting as a committee of the House of Commons, he would then willingly answer its questions since only such a duly constituted body had any authority to examine him.[37]

King James I of England, in 1621, gave a verbal warning to the Parliament that Parliament should not cross him on any subject/ decision and if the Parliament attempts to challenge him, they shall be punished. It was done to put an end to Parliament’s intrusion into the affairs of the Crown. After a series of communications between King James and Parliament over their respective privileges, the Parliament was dissolved by King James I.[38] Following the dissolution of Parliament, in 1629; three Members of British Parliament were prosecuted by King Charles I of England for their statements made in Parliament some eight years earlier.[39] According to the King, the statements made by these Members of Parliament, eight years ago, was dangerous, libelous, and seditious. This outraged the belief and calmness of the Members of Parliament. They asserted their privilege of speech and subsequently challenged the jurisdiction of the Court of King’s Bench. The contention of the Members of Parliament was that even if they are guilty of any offense, they are punishable by the Parliament and Parliament alone and no other court was competent or had jurisdiction to try them for speeches made in Parliament. Their contention was clear that Parliament is the superior court and words spoken in Parliament cannot be questioned in this court, which is inferior.[40]

However, the Court, which was predominately appointed by the King, found the Members of Parliament guilty and subsequently they were imprisoned and levied large pecuniary damages. This incident marked the downfall of King Charles I. This united the Parliament against the intrusions of the King and they demanded a more concrete privilege of speech. The prosecution of the Members of Parliament was declared as a violation against their privileges by the House of Commons.[41]

Sir William, the Speaker of the House under the reign of King Charles II of England, played a vital role in getting the privilege of speech and debate recorded officially in the Laws of England as a privilege for its Parliamentary Members.[42] It started in 1668 when the King of England was exposed with intentions of replacing Protestantism, as the official religion of England, with Catholicism. The document suggesting it, with the permission of the source of the document and the Speaker of the House, Sir William, was published describing it as “popish plot” of the King.[43] Sir William was prosecuted for publishing such documents in Parliament. The King based this prosecution on the legal argument that prior history and cases had carefully and narrowly defined the free speech privilege to provide absolute immunity only for speeches, debates, and votes within the walls of Parliament. In response, Parliament asserted that the privilege encompassed all of the ordinary and necessary functions of the legislature and that the publication of proceedings was such a function.[44]

This gave birth to a revolution in England and it resulted in the adoption of the English Bill of Rights, which contained the long awaited Speech or Debate Clause. The clause indicated that there will be freedom of speech and debates and that any speech, debate or proceedings in the Parliament cannot be impeached or questioned in any court or place out of Parliament.[45] The adoption of the speech or debate clause was intended to cover not just those things done by representatives while physically present inside Parliament, but instead to encompass all of the ordinary and necessary functions of the legislature.[46] This established freedom of speech in the House and protected it from any kind of interference either by the Crown or the Courts.

The emergence of Parliamentary Privilege in England was the result of the long struggle between King and Commons. The most important right of freedom of speech, as enjoyed by the Members of the British House of Commons was contained in Article 9 of the Bill of Rights. This not only gave birth to Privileges but also to democratic setup in true sense. It is important to note that all the claims of the Members of Parliament were not codified as Privileges. Members sought to extend their privilege from hindrance or molestation to their property, claiming a breach of privilege in instances of trespassing and poaching. Such practices were eventually curtailed by statute because they clearly became a serious obstruction to the ordinary course of justice.[47] The British Parliament acknowledged that fact that the interest of the Nation cannot be undermined in order to protect the privileges of the Parliament. It was decided by the British Parliament that no new privileges will be created by any House of Parliament which is not warranted by the known laws and customs of the Parliament. As the result, only such Privileges were recognized which was absolutely necessary for the House to function effectively and for the Members to carry out their responsibilities as Members.[48]

The history of Parliamentary Privileges in Britain witnessed many occasion when the Parliament and the courts came face to face on the issue of privileges and their ambit of usage. Although many authors phrase it as a black phase in the history of British Democracy but a large group of scholars considered it helpful in determining the bounds between the rights of Parliament and the responsibility of the courts.

Parliamentary Paradigms: Theorizing Privilege

There are two basic paradigms, based on the ideas of William Blackstone and John Stuart Mill, which is seen as characterizing the development of privilege[49]. In the Blackstonian paradigm, which dominated in the earlier history of privilege the Commons is seen as the only democratic element of the Constitution, so that privilege has the function of protecting the House from outside interference at all costs, i.e. to threaten the power of the House is to threaten democratic values.[50] This is a “geographical” concept of privilege which focuses on actions taking place within the physical confines of the House.[51] The media and the public are viewed as potential threats rather than parts of the democracy and the overriding purpose of defending the legislature from the nobility and the monarchy justifies impositions on the rights of citizens and the neglect of any role for constituents.[52] Ensuring a tight nexus between the actions of the Commons and the wishes of its constituents was an afterthought. Indeed, Blackstone seems at times simply to have assumed that protecting the House of Commons was tantamount to protecting the rights of citizens.[53]

In contrast, the Millian paradigm views privilege as serving “to facilitate something approaching popular sovereignty,i.e., to promote the convergence of the will of the public with the actions of the state”.[54] The Millian paradigm is characterized by a “functional” concept of privilege that protects only the essential functions Members require to carry out their public duties.[55] With the decline of the threat to the Commons from other political actors, it could afford to defend its constitutional role in a more precise way that fine-tunes, rather than merely increases its relative power.[56] It is like semi-permeable membrane compared to the solid wall of the Blackstonian paradigm.[57]

The central argument is that the two paradigms form a continuum and that the appropriateness of the particular interpretation of privilege adopted depends on the political climate and the relative security of the legislature’s position, i.e., the ultimate purpose of privilege should be to strengthen democracy. It is important to bear in mind that the purpose of the parliamentary privilege is to secure the proper dignity, efficiency and independence of the legislature and not to protect individuals from due process. This legal institution is not a personal immunity; it is an occupational immunity, which is provided to ensure that the duties of representatives may carry out perfectly. This immunity is not meant to place a Member of Parliament above the law, but to protect him from possible groundless proceedings or accusations that may be politically motivated; thus it is not a discriminatory institution.[58] Another theoretical basis to justify parliamentary privilege is a definite and unquestionable rule in jurisprudence necessary to override other important interests. The free expression of opinion and facts in Parliament is so important to our democratic way of life that this freedom (protected by absolute privilege) overrides any private right or interest of the person who might be defamed.

Parliamentary Privilege protects the legislative branch from interference by the executive and judicial branches. The purpose is derived directly from the separation of powers doctrine. The privilege also relieves the parliament and their Members from the burden of defending themselves in court, allowing them to concentrate on their legislative activities.[59] In other words, the privilege protects statements made in circumstances where the public interest in securing a free expression of fact or opinion outweighs the private interest of the person about whom the statements are made.[60]

Status of (Parliamentary) Privilege in Hohfeldian Model

Privilege has been misunderstood in the past and the confusion is still persisting due to the scattered opinion of the jurisprudents. It is however generally assumed that privilege is a notion coordinate with right, duty, liberty, power, immunity etc.[61] Hohfeld’s jurisprudence was simple and it had specific mentioning of the word “privilege”. He promptly gave the widest, but the most realistic definition of the word “privilege” According to the legendary jurisprudent, privilege is one’s freedom from the right and claims of others. The original work of Hohfeld had specific mentioning of privilege, which later was substituted with “liberty”, considering it more suitable and precise. Explaining it further, Hohfeld stated that a privilege is the correlative of no-right and it is negative of duty. The nature of privilege was explained by Hohfeld by citing an example, in which privilege was explained by using rights and duties, justifying it as the correlative of no-right and negative of duty. If, in the words of Hohfeld, a salad is owned by A, B, C and D, and being the owner of the salad if they ask X, “Eat the salad, if you can; you have our license to do so, but we don’t agree not to interfere with you”. The privilege, in this case, exists, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But it is equally clear that if A had succeeded in holding so fast to the dish that X couldn’t eat the contents, no right of X would have been violated.[62] The Genesis drawn from this example as to what privilege meant to Hohfeld is that to have a privilege of doing a thing means (i) to have no duty of doing the thing, (2) to have no claim or right against others that they should refrain from interfering with doing the thing, and (3) to be under no duty not to do the thing.[63] Privilege, as Hohfeld conceives it, is a relation between persons which the state does not regulate, nor protect. A privilege may be expressed as a relation composed of (1) no right in person of inherence, (2) no affirmative duty in person of inherence, and (3) no negative duty in person of inherence.[64]

This notion of privilege, although, was not criticized, but was definitely contradicted by other jurists and jurisprudents. There are multiple opinions among the jurisprudents, each of them supposedly believing privilege to be a right or power or liberty.[65] The researcher also feels that privilege, based on its kind, has different characteristics and can be clubbed with either of the three on the basis of circumstances in which it occurs. This means, relying on the fact that privilege in itself can be divided into several kinds, the texture of its characteristics changes.

According to Holland, “right” is the one sufficient term which is at the basis of law. The proximate purpose of the law is to create and enforce, to declare and protect, “rights”. And these rights so declared and protected by law, i. e., “legal rights”, denote in the last instance, pragmatically speaking, the ability of the person or persons having such rights to control the acts or forbearances of other persons, with the help of the state force.[66] This notion, accompanied by the Hohfelds belief that the idea of privilege may be applied to anything to which the idea of special advantage applies and right in its wider sense includes privilege, brings privilege under the umbrella of right. It can also take the form of power, liberty, immunity as when a particular body has as a privilege the power to grant licenses or the legislature has the power to compel the attendance of witnesses or when someone has the liberty to do something or immunity from parking fines.[67]

Parliamentary Privileges is one such classic example which acquires multiple positions in the Hohfeldian Table. As it has already been discussed that privileges associated with the Parliament, as an institution, are basically the “powers” of the Parliament while its nature changes to “immunities” when it gets associated with the Members of Parliament. Parliamentary Privilege, as a privilege, has the tendency of “liberty”.

[1] Black’s Law Dictionary, 6th ed., 1990, p.1197, defines privilege as, “A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption. A peculiar right, advantage exemption, power, franchise, or immunity held by a person or class, not generally possessed by others.”

[2] John Bouvier, A Law Dictionary: Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, CreateSpace Independent Publishing Platform, Revised 6th ed., 2013, p.185.